International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 45 Cross-Border Philanthropy ALLIES OR ADVERSARIES? FOUNDATION RESPONSES TO GOVERNMENT POLICING OF CROSS-BORDER CHARITY DR. OONAGH B. BREEN* I. The Context for Cross-Border Philanthropy: Framing the Policy Issue At what moment in time does government policing of cross-border charitable activities leave the realm of the regulation of civil society and enter the realm of civil society repression? Does the legitimacy of a measure restricting civil society action depend on the legal or political context in which it is made, or are such measures simply transplantable across jurisdictional lines? Research shows that authoritarian regimes are not alone in recent attempts to constrain civic space,1 with examples of restrictive measures present in semi-authoritarian and democratic regimes alike. From east to west, new restrictions on the rights of NGOs to receive or use foreign funding in their philanthropic work are emerging. From Russia’s foreign agents’ laws2 to Ethiopia’s clampdown on human rights organizations supported by foreign aid3 to India’s recent decision to disassociate itself from the UN HRC Consensus Resolution on Civil Society Space,4 there is growing evidence that countries are viewing NGOs as troublesome adversaries more than as supportive allies. This article seeks to explore the legal and policy underpinnings for these restrictions, which are often imposed in the name of enhancing development effectiveness or efficiency against a backdrop of the host country ownership of the deliberative space. Particular attention is paid to the drivers behind these restrictions and the context in which these measures arise. Understanding the legal restrictions imposed in the name of host country ownership gives rise to two broader questions. First, to what extent should foreign foundations be free to fund * Dr. Oonagh B. Breen, [email protected], is Senior Lecturer in Law, Sutherland School of Law, University College Dublin. An earlier version of this article was presented at the 2014 Annual Conference of the National Center on Philanthropy and the Law, New York University, on “Regulation or Repression: Government Policing of Cross- Border Charity,” October 26, 2014. 1 Second Thematic Report of the Special Rapporteur to the UN on the rights to freedom of peaceful assembly and of association, Maina Kiai (April 2013), A/HRC 23/39; ICNL, Legal and Regulatory Framework for Civil Society: Global Trends in 2012-2013 (Vol. 4, Iss. 2, October 2013). 2 See Russian Federation Laws on Introducing Amendments to Certain Legislative Acts of the Russian Federation 2006; and Introducing Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of Activities of Non-commercial Organizations Performing the Function of Foreign Agents 2012. 3 Proclamation to Provide for the Registration and Regulation of Charities and Societies 2009 (restricting NGOs that receive more than 10 percent of their financing from foreign sources from engaging in essentially all human rights and advocacy activities). 4 Permanent Mission of India, Geneva, Agenda Item 3: Resolution on Civil Society Space, Statement by India in explanation of vote before the vote (27th Session of the Human Rights Council, September 26, 2014). International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 46 their own development priorities when engaged in cross-border philanthropy, or should such donors be required to abide by the policy priorities set by the host country or government? This first question examines the thorny issue of national sovereignty and a nation’s autonomy over its destiny and its ability to exclude “outside influence,” on the one hand; and the place of civil society—both local and international—in negotiating that space, on the other. The second separate, albeit related, question considers the extent to which a host country should be able, in the name of good regulation, to control local philanthropic activity supported by foreign foundation funding. When does a legitimate regulatory tool in one jurisdiction become a regulatory tool of oppression in another? Can an apparently measured requirement have a far more invidious practical effect on foreign foundations or foundations that enjoy foreign funding than on those organizations enjoying government favor? If the regulatory framework indirectly discriminates against foreign donors or local NGOs enjoying their support, is there a policy mechanism through which these issues can be discussed and resolved? The context for this “country ownership” debate in philanthropy circles has, in the past and with good reason, focused on the area of development aid. Development experts and economists have debated whether the billions spent on aid for developing countries, particularly in Africa, has helped or hindered those nations and the individual citizens who most need assistance. In his works, The White Man’s Burden5 and The Tyranny of Experts,6 Bill Easterly makes a strong case that the approach of those he refers to as the “development technocrats” or the “planners” (in short, the aid agencies, the NGOs, the development experts sent out to the field) has been far from successful. He argues that growth comes from within a nation and not from development, and he has urged donors to be much more modest about what they can achieve, bearing in mind the risk that in providing aid, a foreign donor may do more harm than good if such aid undermines the host country’s ability to deliver on its national development strategy. Perhaps a more interesting critique, which follows in Easterly’s vein, comes from Dambisa Moyo, a Zambian economist who, in her book Dead Aid,7 argues that development assistance has failed demonstrably and has in fact contributed to poverty in Africa. Moyo makes the case that there are more effective ways of accelerating development outside of foreign aid/philanthropy. The debate to date in this arena has focused very much on larger development/economic growth issues in teasing out the interplay between host country autonomy and foreign donor freedom. This article revisits the development arena but attempts to look at existing problems through a legal lens. There are other spheres in which the ownership questions at the heart of this paper are equally relevant – for instance, in the sphere that I will call the “non-development arena.” A foundation does not have to be operating in a development context before encountering legal restrictions that adversely affect cross-border philanthropic activity. In a first-world context, a foundation established in one country but wishing to operate in the territory of another state may find itself subject to restrictions that hinder or undermine its organization’s ability to work or, at least, to work as effectively as it might otherwise do. These restrictions may arise in relation to 5 William Easterly, The White Man's Burden: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good (OUP, 2007). 6 William Easterly, The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor (Basic Books, 2014). 7 Dambisa Moyo, Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa (FSG, 2010). International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 47 issues of establishment or registration, or in the area of taxation or accountability. On occasion, they may spring from a governmental concern over state sovereignty or security or differing views on the role of democracy and the legitimacy and value of an unelected and perhaps “uncontrollable” civil society. Depending on the context, these restrictions can have serious consequences – sometimes unintended, sometimes very much intended – on a foreign NGO’s ability to fund or carry out activities in a host country. Consideration of these issues common to both the development and non-development spheres is important, as it forces us to adopt a critical and hopefully more honest approach to the feasibility of policy proposals. Part II of this article focuses on the development aid arena, acknowledging the problems that have given rise to a loss of political momentum and the steps taken to reset the international development agenda. Moving away from development, Part III explores briefly the cross-border restrictions hampering philanthropic engagement in the areas of European and international law. To this end, attention is first focused on the European Commission’s ill-fated proposal to develop the European Foundation Statute (“EFS’) to facilitate greater foundation cross-border interaction within the EU and the legal and political difficulties that this proposal has encountered. Second, and more briefly, consideration is given to the policy reasons advanced to justify emerging, increasingly endemic government constraints on NGOs (whether foreign or foreign-supported) active in the area of democracy promotion and rights-based advocacy. Underlying all three case studies – development and non-development – is the common thread of “host country ownership” and autonomy. Part IV turns to this specific concept in light of the case studies and seeks to understand which institutions represent “the host country” and whether there is an agreed understanding of “ownership” – its scope and its limitations. This article concludes with a review of whether the balance of rights between country ownership and stakeholder/civil society participation therein has been properly struck, and provides a tentative outline of some of the possible tools open to recalibrate the balance between government and civil society power. Judicious use of these tools requires, in the spirit of the Serenity Prayer, knowledge of all avenues and their relationships to each other so that we might have the serenity to appreciate the things that we cannot change, the courage to change the things we can, and the all-important wisdom to know the difference. II. Contextualizing the Development Aid Agenda – Identifying the Problems The last forty years have seen dramatic changes in the traditional list of development aid recipient countries. Between 1970 and 2010, 15 new countries joined the list of OECD/DAC supported countries, with a further 35 leaving the aid recipient list during this period.8 This shift can be attributed both to the improved rate of economic development and rise in country income level (of those leaving) and to the emergence of new states in need of independent assistance upon the collapse of the former Soviet Union and the dismantling of the apartheid system in South Africa.9 8 OECD/DAC, Development Cooperation Report 2011 (50th anniversary ed., Paris) at 225. Among those joining the recipient list for the first time were China, Albania, Ukraine, and South Africa. Those leaving the list during this period included Cyprus, Singapore, Qatar, Portugal, and Korea. 9 Guido Ashoff and Stephan Klingebiel, Transformation of a Policy Area: Development Policy is in a Systemic Crisis and Faces the Challenge of a More Complex System Environment (German Development Institute Discussion Paper 9/2014) at 16. International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 48 The last ten years have witnessed growing concerns over the effectiveness of aid and the emergence of an international consensus that the aid system was in urgent need of reform. In the first instance, development aid was seen to be part of the problem that it wished to resolve. A proliferation in the number of donors to recipient countries led to a consequent fragmentation of projects. For recipient host countries, this proliferation gave rise to a series of related problems. First, the large number of development actors increased transaction costs10 and administrative and reporting burdens on the recipient country.11 Second, the sheer number of philanthropic and development projects (as opposed to more coherent programs) and the attendant complexity of interactions between foreign donors, local intermediaries, government agencies, and ultimate beneficiaries gave rise to principal-agent problems. Host country governments found it difficult to coordinate the various donors and to fully integrate them into the broader national development plan.12 As effectiveness and efficiency were thereby adversely affected, so, too, ultimately was host country ownership.13 Third, aid conditionality could result in the host country being primarily answerable to the donor rather than through traditional parliamentary and budgetary processes of accountability, thereby unintentionally weakening further the domestic political infrastructure. In the words of Barder, Donors can also have the perverse effect of reducing accountability by enabling line ministries to obtain resources in the form of projects and sector funding which releases ministers from the disciplines of the budget process. Neither the Parliament nor the Cabinet and Finance Ministry can effectively prioritize government spending or hold ministers to account for their performance if a substantial amount of discretionary spending is financed outside the fiscal systems that parliaments use to control the executive.14 This would present a problem in any well-developed economy but is particularly acute in the least-developed countries and lower-income countries that tend to be the traditional recipients of 10 William Easterly, “Are Aid Agencies Improving?” (2007), 52 Economic Policy 633, at 640-41; Arnab Acharya, Ana Teresa Fuzzo de Lima, & Mick Moore, “Proliferation and fragmentation: Transactions costs and the value of aid” (2006), 42(1) Journal of Development Studies 1. 11 See Eliott Morss, “Institutional destruction resulting from donor and project proliferation in Sub-Saharan African countries” (1984), 12(4) World Development 465; Yutaka Arimoto and Hisaki Kono, “Foreign Aid and Recurrent Cost: Donor Competition, Aid Proliferation, and Budget Support” (2009), 13(2) Review of Development Economics, 276. In an effort to begin to address these issues, the OECD organised the first High Level Forum on Aid Effectiveness in Rome in 2003. It concluded with a commitment by donor governments to harmonize practices in view of reducing transaction costs for partner countries. 12 Easterly, n. 5, above. 13 David Booth, “Aid effectiveness: bringing country ownership (and politics) back in” (2012), 12(5) Conflict, Security & Development, 537-558. 14 Owen Barder, Are the planned increases in aid too much of a good thing?, Centre for Global Development, Working Paper Number 90, July 2006, at 17. See also the work of Tony Killick, “Principals, Agents and the Failings of Conditionality” (1997), 9(4) Journal of International Development, 483-495 (finding that “ conditionality does not meet its promise of greater aid effectiveness . . . over-reliance on conditionality leads to major misallocations of resources and large-scale waste of public monies”). International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 49 such aid.15 For recipient countries that rely heavily (or exclusively) on overseas development aid, such funding may diminish the host government’s political and economic accountability.16 These countries share a plethora of problems characterized by an absence of working state structures and poorly functioning or insufficiently legitimate governments. The issues faced by fragile or failing states add further complexity to the picture, marked as they are by instability, insecurity, deficits in government, and limited implementation capacity. Recent moves away from measuring development aid success solely in terms of development outputs (“bean-counting” donation amounts and the number of engagements through projects or otherwise with a host country) to a more systematic consideration of development outcomes achieved (such as achievement of the Millennium Development Goals) has both highlighted the very modest set of achievements made to date while simultaneously demonstrating the empirical difficulties of measuring effectiveness in host countries.17 In light of these acknowledged shortfalls in the development aid regime, international efforts to reform the aid system began in earnest in early 2000, and as outlined by Ashoff and Klingebiel,18 comprise four distinct aspects: 1) The development in 2000 of the UN’s Millennium Development Goals (“MDGs”), representing for the first time goals as content-based yardsticks for measuring development;19 2) The provision of resources for achieving the MDGs in the form of the UN’s 2002 Monterrey Consensus on Financing for Development and related EU measures;20 3) The development and rollout of the Paris (2005), Accra (2008), and Busan (2011) Agendas,21 which set down principles and procedures designed to ensure effective resource deployment, thereby improving aid effectiveness; 15 Dean Chahim and Aseem Prakash, “NGOization, Foreign Funding and the Nicaraguan Civil Society” (2014), 24 Voluntas 487-513. 16 German Development Institute, n. 9 above. C.f. Almuth Scholl, “Aid effectiveness and limited enforceable conditionality” (2009), 12 Review of Economic Dynamics 377–391. 17 OECD, Better Aid: Aid Effectiveness Survey 2011: Progress in Implementing the Paris Declaration at 15. The report, which reviews the progress made in implementing the targets set by the 2005 Paris Declaration, reveals that at the global level, only one out of the 13 targets established for 2010 was met, however, considerable progress had been made towards many of the remaining 12 targets. 18 Above, n. 9. 19 See http://www.un.org/millenniumgoals/. The Millennium Development Goals (MDGs) are eight international development goals, established following the Millennium Summit of the United Nations in 2000, following the adoption of the United Nations Millennium Declaration. All 189 United Nations member states (there are 193 currently) and at least 23 international organizations committed to help achieve these goals by 2015. 20 See Monterrey Consensus (United Nations, 2003), http://www.un.org/esa/ffd/monterrey/MonterreyConsensus.pdf (last accessed September 18, 2014). See also EU Commission Communication to the Council and the European Parliament of March 5, 2004, Translating the Monterrey Consensus into practice: the contribution by the European Union, COM (2004), 150 final; and progress towards attaining the Millennium Development Goals - Financing for Development and Aid Effectiveness, COM (2005), 133 final. 21 OECD, Paris Declaration on Aid Effectiveness (2005) and OECD, Accra Agenda for Action (2008), available at http://www.oecd.org/dac/effectiveness/34428351.pdf; and Busan Partnership for Effective Development International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 50 4) The broader focus on creating greater policy coherence for international development. A. Highways and Byways from Paris to Busan From a legal policy perspective, the Paris Declaration, the Accra Agenda for Action, and the Busan Partnership attempt to renegotiate the “development contract” between donor and recipients countries in the first iteration, broadened in later instances to define “country” beyond an individual governing regime to include a role for parliament and civil society actors. The extent to which this latter broadening is fully accepted by all signatory stakeholders remains a question of some debate.22 The 2005 Paris Declaration set down for the first time a framework of common principles to govern donor and recipient country government interaction, promoting the concept of “host country ownership.”23 The idea behind this concept is not new – relating to the old principle of helping people to help themselves. The Paris Declaration expressed host country ownership as one of the key commitments of the OCED DAC donor, recipient country, and international organization signatories. Recipient governments agreed to exercise effective leadership over their development policies and strategies and to coordinate development actions, and, in return, donors committed to respect partner country leadership and help strengthen their capacity to exercise it.24 The Paris Declaration, while emphasising the importance of host country ownership, did not spell out which institutions constituted the “host country,” leaving it open to states to define ownership very narrowly as being “host government ownership” to the exclusion of other relevant stakeholders. Moreover, it made no reference to the role of civil society in the delivery of effective aid. The Accra Agenda for Action, which followed three years later in 2008 and again was initiated and driven by the OECD DAC countries, took a stronger political line than Paris. It highlighted the important roles that national parliaments and civil society play in host countries,25 and it expressly called for more effective and inclusive partnerships to occur between civil society, the private sector, and host governments.26 The Accra meeting was the first high- level forum to convene a parallel conference for 325 civil society organizations from more than 88 countries. The convening of civil society and the express recognition of its role in the Accra Agenda represented a deliberate attempt to overcome the latter’s glaring omission from the Paris Declaration. Cooperation (2011), available at http://www.oecd.org/dac/effectiveness/49650173.pdf (last accessed September 18, 2014). 22 Carolyn Gibb Vogel and Mercedes Mas de Xaxás, Making Country Ownership a Reality: An NGO Perspective,(2007), 2(3) Population Action International, available at http://populationaction.org/wp- content/uploads/2012/01/CountryOwnership.pdf (last accessed February 3, 2015). 23 The Paris High-Level Forum on Aid Effectiveness was not the first in the series. The first High-Level Forum took place in Rome in 2003, two years prior to the Paris forum. The Rome Forum discussions focused on why aid was not producing the desired results and how efforts to meet the MDG targets could be improved. It concluded with a commitment by donor governments to harmonize practices so as to reduce transaction costs for partner countries. 24 Paris Declaration on Aid Effectiveness (2005) at [14]–[15]. 25 See Accra Agenda for Action (2008) at [13]-[15]. 26 Ibid. at [16]. International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 51 B. The Emergence of Civil Society: From Advisory Groups to Open Forums The greater visibility of civil society at Accra was no accident; it had been carefully orchestrated in the intervening years following the Paris Declaration. It began in 2007 when a steering group of civil society organizations (CSOs) called “the BetterAid Coordinating Group” came together with the support of some donor governments to form a temporary multi- stakeholder Advisory Group on Civil Society and Aid Effectiveness (AG-CS). AG-CS provided civil society with a formal link to the OECD and enabled discussions to be held whereby a common understanding could be reached on the part played by civil society in the international development system. The holding of the parallel CSO conference at Accra reflected the achievements of the AG-CS in bringing these issues into the room, if not quite to the table, although many civil society representatives feared that the references to civil society in the Accra Agenda amounted merely to lip service.27 The Accra Agenda for Action (AAA) prompted the civil society community to come together and to initiate a consensus process to define the role of civil society in international development and specifically “to reflect on how [CSOs] can apply the Paris principles of aid effectiveness from a CSO perspective.”28 Convening as the Open Forum for CSO Development Effectiveness, more than 70 CSO representatives embraced this challenge in 2008 by meeting to explore the roles played by CSOs in development and how these roles differed from those of official development institutions and donor governments. The objectives of the Open Forum for Development Effectiveness were threefold: To achieve a consensus on a set of global principles for development effectiveness; To develop guidelines for CSOs to implement these principles; and To advocate to governments for a more enabling environment for CSOs to operate. Following a worldwide consultation process, involving thousands of CSOs in more 70 countries and two global assemblies (in Istanbul in 201029 and in Siem Reap in 2011), a consensus was reached on the content of the Principles and a Framework for Development Effectiveness. The Istanbul Principles, as they have become known, set out the conditions for effective CSO participation as development actors. They focus on civil society promotion of human rights, gender equality, people empowerment, and environmental sustainability. They also commit CSOs to realizing positive sustainable change, practicing transparency and accountability, sharing knowledge and mutual learning, and pursuing equitable partnerships.30 27 See Tina Wallace, “On the road to Accra, via Canada and County Kerry” (2009), 19(6) Development in Practice 759, at 762 (noting that civil society the delegates “were reminded – gently at first but then more persistently – by some of the donors and members of the advisory group that there was no chance of challenging or changing the PD at Accra; politically there was very little room for manoeuvre. All that was possible was to bring forward an amendment or two, acknowledging the role of CSOs and the need for their inclusion in future PD work.”). 28 Accra Agenda for Action, [20]. 29 Involving the participation of 170 CSO delegates from 82 countries. 30 See http://cso- effectiveness.org/IMG/pdf/final_istanbul_cso_development_effectiveness_principles_footnote_december_2010- 2.pdf (last accessed September 25, 2014). International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 52 The International Framework for CSO Development Effectiveness, agreed at the Siem Reap Global Assembly in Cambodia in 2011, expanded on the Istanbul Principles by explaining the significance of each principle and elaborating on how civil society is already implementing them. Starting from the Accra Agenda recognition that CSOs are “independent development actors in their own right” and the commitment of AAA signatories to deepen their engagement with them,31 the framework for CSO Development Effectiveness sought to identify the critical conditions for enabling CSO involvement in the development of government policies and practices. The need for an enabling environment for CSOs is captured well by the framework agreement, which notes: In almost all countries, CSOs, their staff and volunteers are experiencing political, financial and institutional vulnerability, arising from the changing policies and restrictive practices of their governments. CSOs are concerned about the impact of these restrictive policies on democratic and legal space for CSOs. This CSO vulnerability is exemplified in the use of pervasive anti-terrorism legislation, more restrictive government financial and regulatory regimes and the exercise of government power to limit “political” activity and sometimes repress CSOs and their leaders, who may be human rights defenders or critical of government policies.32 Institutional recognition of the difficulties facing civil society came with the UN Human Rights Council’s passing of Resolution on the rights to freedom of peaceful assembly and of association in 2010,33 which bestowed further international recognition and legitimacy on the role played by CSOs. This Resolution mandated the establishment of a UN Special Rapporteur to monitor these rights with subsequent UN Resolution 21/16 emphasizing “the critical role of the rights to freedom of peaceful assembly and of association for civil society, and recogniz[ing] that civil society facilitates the achievement of the purposes and principles of the United Nations.” With the holding of the Fourth High Level Forum on Development Aid in Busan, Korea in 2011, a new milestone was reached with civil society actors participating in the negotiations as full and equal participants for the first time. The Busan Partnership expressly affirmed the work of the Open Forum for CSO Development Effectiveness in recognizing the vital role of these organizations in “enabling people to claim their rights, in promoting rights-based approaches, in shaping development policies and partnerships, and in overseeing their implementation.”34 It endorsed CSO usage of both the Istanbul Principles and the International Framework for CSO Development Effectiveness, and it called on signatories to Busan to: implement fully our respective commitments to enable CSOs to exercise their roles as independent development actors, with a particular focus on an enabling environment, 31 See n. 28 above. 32 See n. 30 above, at 22. 33 A/HRC/RES/15/21, October 6, 2010. The Human Rights Council renewed its commitment to promote and protect the rights to freedom of peaceful assembly and of association, by adopting resolution 21/16, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/21/16 (October 2012) and resolution 24/5, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/24/5 (October 2013). 34 Busan Partnership for Effective Development Co-Operation, Fourth High Level Forum on Aid Effectiveness, Busan, Republic of Korea, 29 November-1 December 2011, at [22], available at http://www.oecd.org/dac/effectiveness/49650173.pdf. International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 53 consistent with agreed international rights, that maximises the contributions of CSOs to development.35 To a degree, the Busan Partnership agreement reset the stakeholder debate in more ways than one. Civil society was joined at the negotiation table by another set of new entrants in the form of the BRICS countries,36 enabling the reform process to be called a truly global partnership and recognizing the changes in development partnerships beyond North-South aid to South-South cooperation.37 Complementing this move beyond DAC donor countries, a second change, in part spurred by the growing South-South interactions, was reflected in a language shift in Busan away from “aid effectiveness” towards a broader platform of “development effectiveness.”38 C. Post Busan – Current Developments Three years on from Busan, giving full effects to the commitments agreed in the Partnership Agreement remains difficult. Civic space continues to contract in a number of countries – not just in authoritarian and semi-authoritarian states but also more worryingly in nations held out as more normally adhering to the principles of democracy.39 Most recently, the UN Human Rights Council adopted by consensus a resolution on civil society, tabled by Ireland, which enjoyed the support of more than 66 cosponsors.40 Drawing on existing principles of international law, the Resolution highlighted crucial points of principle regarding the workings of civil society, restating that: The ability of people to collectively solicit, receive and utilise resources is a key component of the right of freedom of association;41 National security and counter-terrorism legislation and provisions on funding should not be abused to hinder the work or safety of civil society;42 Civil society space is particularly important for minorities, the marginalised and other disadvantaged groups as well as those espousing minority or dissenting views or beliefs;43 35 Ibid. 36 Brazil, Russia, India, China, and South Africa. 37 This change is further evidenced by the replacement of the OECD/DAC secretariat, the Working Party for Aid Effectiveness (“WP-EFF” which oversaw Paris and Accra), with the Global Partnership for Effective Development Cooperation in 2012, the steering committee of which has one OECD and one civil society representative, and is charged with overseeing the Busan Partnership deliverables. 38 Busan Partnership, [28]–[29]. On the difference between “aid effectiveness” and “development effectiveness” see Shannon Kindornay and Bill Morton, “Development Effectiveness: Towards New Understandings” in Issues Brief (North-South Institute, September 2009). 39 See Douglas Rutzen, “Aid Barriers and the Rise of Philanthropic Protectionism,” in this issue; and Barbara L. Ibrahim, “States, Public Space and Cross-Border Philanthropy: Observations from within the Arab Transitions,” presented at Conference on Regulation or Repression: Government Policing of Cross-Border Charity, National Center on Philanthropy and the Law, New York University, October 23-24, 2014. 40 UN Human Rights Council, Resolution on Civil Society Space, A/HRC/27/L.24 (September 23, 2014). 41 A/HRC/27/L.24 at 10. 42 A/HRC/27/L.24, Preamble. International Journal of Not-for-Profit Law / vol. 17, no. 1, March 2015 / 54 The real and effective participation of people in decision-making processes should be secured, including at the domestic level in the development, implementation or review of legislation, but also at the regional and international levels.44 Ten countries proposed ultimately unsuccessful amendments to the initial Irish draft which would have seriously weakened the Resolution had they been adopted. Included among those ten were India and South Africa.45 In light of this, India chose to disassociate itself from the Consensus Resolution on September 26. Pinning its objections to the very issue of host country ownership and autonomy, the Indian explanation of its position before the vote declared that: Civil society must operate within national laws. To treat national laws with condescension is not the best way to protect human rights, even by civil society with the best of intentions. We wish that caution should be exercised in advocacy of the causes of civil society. The Resolution is unduly prescriptive on what domestic legislation should do and should not do. This is the prerogative of the citizens of those countries.46 Accusing the Resolution of “fallaciously seek[ing] to make civil society a subject of law,”47 the Indian Statement went on to expressly dissociate India from the paragraphs of the Resolution concerning the valuable role played by civil society in the decision-making process regarding legislation; the need to ensure a legally enabling environment for civil society; the right for CSOs to solicit, receive, and utilize funds; the work of the office of the UN High Commissioner for Human Right in the promotion and protection of civil society space; and the right of civil society to unhindered access to regional and international bodies, including the UN. The Indian perspective on civil society sits in stark contrast to the views expressed in the U.S. Presidential Memorandum to the heads of U.S. government executive departments and agencies, issued on the same day as the UN HRC Consensus Resolution. The memorandum, expressly acknowledging the participation of civil society as fundamental to democracy, directed U.S. agencies engaged abroad to “take actions that elevate and strengthen the role of civil society; challenge undue restrictions on civil society and foster constructive engagement between governments and civil society.”48 Making sense of these very different attitudes toward the role of civil society in development, the civic space accorded to such entities, and the scope of those rights guaranteed requires a look at the larger policy picture beyond the minutiae of regulation. To appreciate the bigger picture, it is therefore useful to shift the lens of inquiry away from the development sphere and to look instead at the non-development arena in the context of, first, the role of 43 A/HRC/27/L.24 at 4. 44 A/HRC/27/L.24 at 8, 12 and 13. 45 The other states that proposed constraining amendments were Bahrain, China, Cuba, Egypt, Russia, the United Arab Emirates, and Venezuela. 46 Permanent Mission of India, Geneva, Agenda Item 3: Resolution on Civil Society Space, Statement by India in explanation of vote before the vote (27th Session of the Human Rights Council, September 26, 2014). 47 Ibid., at [2]. 48 Office of the Press Secretary, Presidential Memorandum: Deepening US Government Efforts to Collaborate with and Strengthen Civil Society (The White House, September 23, 2014).
Description: